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State v. Haji

Court of Appeals of Oregon

August 1, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
HANAD ALI HAJI, Defendant-Appellant.

          Argued and Submitted June 7, 2018

          Multnomah County Circuit Court 16CR02527 Thomas M. Ryan, Judge.

          John Evans, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and Garrett, Judge, and Schuman, Senior Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for multiple offenses. He was charged with seven offenses in a single indictment. After the Court of Appeals decided State v. Poston, 277 Or.App. 137, 370 P.3d 904 (2016), adh'd to on recons, 285 Or.App. 750, 399 P.3d 488, rev den, 361 Or. 886 (2017), the state moved to amend the indictment to allege the basis for joinder of the charges, and defendant then demurred to the indictment based on the omission of the allegations of the basis for joinder. The trial court allowed the state's motion and denied the demurrer. Defendant assigns error to, among other things, the trial court's allowance of the state's motion to amend the indictment without resubmission to the grand jury and its consequent denial of his demurrer.

         Held:

         The trial court did not err by allowing the state to amend the indictment to assert the allegations necessary to comport with Poston. In Poston, the Court of Appeals held that ORS 132.560 and ORS 135.630 require the state "to allege in the charging instrument the basis for joinder of the crimes that are charged in it, whether by alleging the basis for joinder in the language of the joinder statute or by alleging [293 Or.App. 203] facts sufficient to establish compliance with the joinder statute," or face grounds for demurrer. 277 Or.App. at 144-45. When a charging instrument fails to meet those requirements, a trial court may permit the state to amend the charging instrument to cure the defect without requiring that the matter be resubmitted to the grand jury.

         Affirmed.

          [293 Or.App. 204] LAGESEN, P.J.

         In State v. Poston, 277 Or.App. 137, 144-45, 370 P.3d 904 (2016), adh'd to on recons, 285 Or.App. 750, 399 P.3d 488, rev den, 361 Or. 886 (2017), we held, as a matter of first impression, that ORS 132.560 and ORS 135.630 require the state "to allege in the charging instrument the basis for the joinder of the crimes that are charged in it, whether by alleging the basis for joinder in the language of the joinder statute or by alleging facts sufficient to establish compliance with the joinder statute." Further, the failure to sufficiently allege the basis for joinder of the charges included in a charging instrument is grounds for a demurrer. Id. at 145. This case raises a question that was inevitable to arise after Poston: When a charging instrument fails to allege facts sufficient to demonstrate the basis for joinder, may a trial court permit the state to amend the charging instrument to cure the defect without requiring that the matter be resubmitted to the grand jury so as to avoid the grant of a demurrer? We conclude, as did the trial court, that the answer to that question is yes.

         The facts relevant to the issue before us are procedural. Not long before we decided Poston, the state charged defendant with seven offenses in a single indictment: two counts of first-degree robbery, two counts of first-degree burglary, two counts of unlawful use of a weapon, and one count of felon in possession of a firearm. After we decided Poston, the state moved to amend the indictment by interlineation to allege the basis for the joinder of the charges. The state asserted that the amendment was authorized by Article VII (Amended), section 5(6), of the Oregon Constitution, which authorizes the district attorney to "file an amended indictment or information whenever, by ruling of the court, an indictment or information is held to be defective in form." Or Const, Art VII (Amended), § 5(6). The state contended that the omission of allegations relating to joinder were defects in "form" within the meaning of the constitutional provision under State v. Wimber, 315 Or. 103, 843 P.2d 424 (1992), such that the constitution authorized the proposed amendments without resubmission of the indictment to the grand jury.

         [293 Or.App. 205] Defendant opposed the motion, arguing that the omission of allegations demonstrating the propriety of joinder could not be remedied without resubmission to the grand jury. Defendant also filed a written demurrer, arguing that the indictment must be dismissed "for violation of ORS 132.560" for not alleging the basis for joinder in the manner required by Poston. Defendant did not dispute that, if the trial court permitted the requested amendments, the indictment would sufficiently allege ...


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